Resurrected treaty made history

Mon. Jan. 5/15

2015-01-05T00:00:00

It was a day that started innocently enough. Two men — Clifford White of the Snuneymuxw First Nation and David Bob from the Snaw-Naw-As First Nation — had finished up a successful day of hunting, loaded up their car with six deer carcasses, their rifles, Clifford's teenage son Leonard and his friend, Jerry Thomas, and began to drive home along Nanaimo Lakes Road.

It was July 7, 1963, and just as dusk began to fall they saw conservation officer Frank Greenfield approach in the oncoming lane.

Upon an inspection of the car, Greenfield discovered the deer, which he confiscated along with the rifles.

The two men were charged with hunting out of season and without the proper permits.

Neither men could have known, in that moment, that their ensuing court case and appeal would set in motion a series of events that would make history.

Most remarkably, what emerged via their case was the resurrection of the Douglas Treaty of 1854, an agreement noted in the oral history of coastal First Peoples for generations, but long forgotten by the settlers who were also parties to the document. Tuesday marks 160 years since Governor James Douglas of the Crown Colony of Vancouver Island signed the treaty with the Snuneymuxw First Nation on Dec. 23, 1854.

Under the terms of the agreement, the land was to become "the entire property of the white people for ever" but the Snuneymuxw would retain their many village sites, including xwsa'luxw'ul, under what is now known as Port Place Mall, large sites along Stewart Avenue, the Nanaimo River, Newcastle Island and St'tiil'up at Departure Bay — a prominent and complex village winter site that archeologists have likened to a small town.

"It was a clear understanding that the purpose of the agreement was to come and buy coal, that our way of life would not be interfered with, that we would not be dispossessed of our village sites, that they were recognized and affirmed," said Doug White (Kwulasultun), director of the Centre for Pre-Confederation Treaties and Reconciliation at Vancouver Island University. The nation rejects the view that the treaty was about extinguishing their territory as stated in the text, he said.

"The way that we argue and talk about it is that it's the first recognition of aboriginal title, because of the structure of the agreement and the understanding, that aboriginal title was recognized here in Snuneymuxw territory. It's also a recognition of our hunting and fishing rights, that we would not be disturbed, that we could carry on as formerly as when we were the only people in this part of the world. But very quickly it became a different story."

Ten years later, Snuneymuxw chiefs, with the assistance of a missionary, wrote a letter to Governor Arthur Kennedy, pleading with him to respect the treaty. Residents were already being pushed out of their village sites, their longhouses burned. The Snuneymuxw were soon confined to a handful of tiny reserves, their borders essentially what they are today.

By 1963, those rights and the treaty that enshrined them were gathering dust in the provincial archives. But David Bob and Clifford White, the cousin of Doug's grandfather, hadn't forgotten the agreement that had formed the basis of stories they had heard since their youth.

"The peace treaty signed years ago between the Crown and the Indians gives us the right to hunt and fish any time of the year," the men are quoted saying in a Daily Free Press article "Two Indians Challenge Powers of White Man," from July 8, 1963.

Spurred on by stories such as that of Joe Wyse (Quen-Es-Then) who witnessed the signing of the last of the 14 Douglas Treaties in Nanaimo as a boy, and whose account was recorded by the columnist Beryl Cryer in the 1930s for the Victoria Daily Colonist, both men continued to insist on their rights.

Conducting their own defence after lawyer James Wilson withdrew from the case, on Sept. 25, 1963, a copy of the treaty from North Saanich was procured and read to the court by Joseph Elliott, a member of Cowichan First Nation, with the understanding that Snuneymuxw were under the same agreement, and were at liberty to hunt for game on unoccupied land and carry on their fisheries as formerly.

The evidence had come forward "too late," said Magistrate Lionel Beevor-Potts, insisting that the "alleged treaty" did not apply in this case. He then found both men guilty, adding that to go out and hunt six deer was "pure piggishness."

"We were not hunting for ourselves. We were hunting for other needy people," responded Clifford. "It further states that in the pact, we are allowed to hunt for deer in any unoccupied land."

"I do not think this applies in this case at all," said Beevor-Potts.

"Would that pact be called a liar?" asked Clifford.

"If you do not like the decision you can appeal, and if you were not a native Canadian, I would give you the maximum. You are fined $100 each," replied Beevor-Potts. Appeal they did, and with the help of renowned defense lawyer Tom Berger, the conviction was overturned on March 4, 1964. Judge A.J.H. Swencisky stated that the treaty did in fact apply to the case, and that "no provincial or federal legislation has ever taken away these ancient rights."

Since that point, the rights specified in the Douglas Treaty have played a central role in many local negotiations from the Colliery Dam to the management of the Nanaimo Harbour and Newcastle Island.

Most significantly, it came to the forefront of a historic reconciliation agreement between SFN and the province on March 27, 2013, in which a portion of their territory - 877 hectares, including a piece of the winter village site at Departure Bay - was returned to the nation.

SFN Chief John Wesley said the Douglas Treaty continues to be utilized in many of the nation's current negotiations and that they plan to mark the 160th anniversary of the treaty's signing in the New Year.

In response to the land that was returned to Snuneymuxw, the small portion located in Departure Bay Area; this land took some undertaking from our late chief, correspondence that brought awareness of why this land needed to be returned.If our late chief did nothing there would of been a new structure built there by the owner at that time.

The Archeological Branch stepped in along with the province as this site unearthed several ancestral remains. It was our late chief, Viola Wyse who saved this land and had the province purchase from the landowner and place the land title under Snuneymuxw but held in trust. The ancestral-burial ground is gated and protected. The future of this site will be determined by Snuneymuxw.